Value of Boston College tapes diminished by anonymous voices

Value of Boston College tapes diminished by anonymous voices
Chris BrayIrish Times
July 27, 2013

There are voices and they talk about the death of Jean McConville. It may not matter. After two years of legal proceedings in the US, a set of audiotapes in a Boston College archive are supposed to answer questions about McConville’s 1972 murder by members of the IRA, who claim they suspected her of informing for the British army in Belfast.

The voices on the tapes are said to belong to former militants from the organisation that took McConville from her home, shot her dead and then buried her on a beach in the South.

But the prolonged court battle may produce evidence of questionable legal value, as Boston College now says it is unable to identify some of the interviewees.

Assuming no further legal wrangling in the US, police in Northern Ireland are set to receive subpoenaed material in which unidentifiable voices anonymously discuss a decades-old murder.

“It certainly greatly diminishes the value of the evidence,” says Eamonn Dornan, a lawyer who has participated in some of the American legal proceedings involving the subpoenas. “If they can’t be identified, they’re meaningless, or almost meaningless.”

The inability of Boston College archivists to identify some interviewees from the venture known as the Belfast Project grows from apparent failures in a system that was designed for the very purpose of masking the identity of research subjects.

In the archive, interview materials were marked only by a coded letter and court documents have used that coding to discuss which of the tapes Boston College is to provide to the Government.

Among the interviewees who discuss McConville’s death, which American courts have concluded from a review of the material, are those known as S, Y, and Z.

Nowhere, however, does Boston College have a key that connects those coded identities to the real identities of the interviewees.

Jeffrey Swope, a lawyer in Boston who represents the university in the proceedings over the subpoenas, acknowledged this week that the school’s archivists have never had that identification key.

In some instances, university archivists are able to identify Belfast Project interviewees by the research contracts they signed. For the subjects known as S, Y, and Z, however, Boston College acknowledges that it doesn’t have interview contracts, although it does have contracts that identify the subjects of four other sets of subpoenaed interviews.

The American university is blaming an Irish journalist for the missing documentation, saying that the writer and filmmaker Ed Moloney was obligated to provide the paperwork under the terms of his contract as the research director of the Belfast Project, which was concluded in 2006.

“Under the agreement between Boston College and Mr Moloney, ” wrote Swope in an email on Wednesday, responding to questions, “Mr Moloney promised to provide a ‘key’ to the code assigned to each interviewee that gave the interviewee’s name. Mr Moloney failed to do. Mr Moloney did provide Boston College the donation agreements for some, but not all, of the interviewees.”

In response, Moloney said that the project ended in 2006, the subpoenas were served in 2011 and only now has Boston College realised that its archivists do not know what is in, or has gone missing from, the college’s own archive.

“Not once in all these years did the college ask me for the key to these interviews and that is because they knew that when I moved to New York at the outset of the project, for family reasons, I could not be involved in a process which stipulated that, for security reasons, contracts could only be taken by hand from Ireland to Boston,” says Moloney.

“This is an attempt to divert attention from the college’s own incompetence, one of many during this sad saga.”

Forced to turn over interviews with research subjects it can’t identify, Boston College is trying to find out whose tapes it has in its archives. The university has asked Moloney to provide them with the missing identification key. “Mr Moloney has refused to do so,” according to Swope.

Swope also provided a copy of Moloney’s contract with Boston College, noting that it required the research director to provide the identification key.

He did not respond to subsequent queries asking why Boston College was bringing the absence of that key to Moloney’s attention in 2013, seven years after the end of the project he ran.

Several Boston College officials, including archivist Robert O’Neill and spokesman Jack Dunn, also did not respond to phone calls and emails this week. Neither did officials at the US Department of Justice.

Dornan, who represents Moloney in litigation over the subpoenas, said this week that neither the US Department of Justice nor Boston College are likely to succeed in any effort to force a key to interviewee identities from the former Belfast Project director.

Moloney won’t co-operate and his long-expired agreement with the university is unenforceable due to the statute of limitations on contractual obligations.

As for American prosecutors, Dornan says, the law only permits them to subpoena “documents which are in existence”. And the identity key doesn’t exist. Other avenues may be available to the Government, including a subpoena forcing Moloney to testify in court, but “there are a lot of procedural difficulties” .

Those legal hurdles will be complicated, Dornan adds, by a new political climate in the US following two years of controversy over the subpoenas.

Whatever legal developments come next, they are unlikely to be resolved quickly. The death of Jean McConville is, 41 years after the event, a story that still resists its ending.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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